United States v. Frederick Arayatanon

Case: 19-60233 Document: 00515637733 Page: 1 Date Filed: 11/13/2020

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

November 13, 2020

No. 19-60233 Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Frederick Arayatanon,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:18-CR-52-1

Before Dennis, Higginson, and Willett, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Frederick Arayatanon was convicted by a jury of conspiracy to possess

with intent to distribute 500 grams or more of methamphetamine under 21

U.S.C. § 846 and sentenced as a career offender to life in prison. Arayatanon

appeals his conviction and sentence. We AFFIRM.

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I.

Arayatanon was charged with a single-count indictment for conspiracy

to possess with intent to distribute 500 grams or more of methamphetamine

in violation of 21 U.S.C. § 846. 1

At trial, the government presented evidence that, beginning in the

summer of 2017, Arayatanon entered into an agreement to sell drugs with

two coconspirators, Tuyen Ngoc Le and Demetrius Darnell Mason. 2

Arayatanon shipped packages of drugs from California to Le’s address in

Biloxi, Mississippi. The packages originally contained marijuana, but later

also included methamphetamine. Arayatanon would send the packages

overnight to Mississippi through FedEx to Le, who provided the packages to

Mason. Mason would pay Le, and Le in turn deposited cash in Arayatanon’s

Wells Fargo bank account. The deposits were made at various Wells Fargo

branches in Mississippi, which Arayatanon could then access through Wells

Fargo branches and ATMs in California. Nine packages were sent in this

fashion from July through November 2017.

In November 2017, DEA agents received reports that large amounts

of marijuana were being distributed from Le’s Biloxi address. While

surveilling the house, DEA agents observed the delivery of the last of these

packages to Le’s address on November 29, 2017, and Le subsequently placed

the package in Mason’s car. Following a car chase, officers apprehended

Mason and recovered the package containing 1 pound of marijuana and 882

grams (or nearly 2 pounds) of methamphetamine. After executing a search

warrant, agents found $9,500 in cash in Le’s purse, and Le was subsequently

arrested. Using records obtained from Le’s phone, officers identified

1

The underlying offense, possession with intent to distribute 500 grams or more

of methamphetamine, violates 21 U.S.C. § 841(a)(1), (b)(1)(A).

2

Both Le and Mason pleaded guilty with cooperation agreements prior to

Arayatanon’s trial.

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Arayatanon and subsequently arrested him while he was crossing the border

from Mexico to the United States.

While Arayatanon and his coconspirators never met in person, they

had communicated by phone, including through WhatsApp messages and

FaceTime. Arayatanon used various other aliases, and was known to his

Mississippi coconspirators primarily as “Khoi.” 3 All of these aliases were

connected to Arayatanon using phone and bank account records, and

testimony from Le, Mason, and the agents who conducted the investigation.

The government also played at trial audio recordings of calls Arayatanon

made while he was in custody. These calls included references to Arayatanon

as “Khoi.” Another call included a conversation in which Arayatanon says

he sent packages “once or twice.”

Arayatanon did not testify and did not present any evidence. At the

close of the three-day trial, the jury returned a unanimous guilty verdict.

Arayatanon was sentenced to life in prison.

II.

On appeal, Arayatanon argues that during his trial, the district court

abused its discretion by excusing two case agents from sequestration under

Federal Rule of Evidence 615, and by admitting jailhouse telephone calls that

he argues undermined his presumption of innocence before the jury.

Arayatanon also asserts that the district court erred at sentencing in

calculating his offense level based on an incorrect drug quantity, imposing a

two-level enhancement because the drugs were imported, and applying the

career offender enhancement. Finding no error, we affirm.

3

He was identified in Le’s phone as “Khoi Cali.”

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A.

First, Arayatanon asserts that the district court erred in exempting

both of the government’s case agents from sequestration pursuant to Federal

Rule of Evidence 615.

We review a district court’s compliance with Rule 615 for an abuse of

discretion, and we will reverse only if Arayatanon demonstrates prejudice.

United States v. Green, 324 F.3d 375, 380 (5th Cir. 2003). Rule 615 provides

that at the request of a party, “the court must order witnesses excluded so

that they cannot hear other witnesses’ testimony.” Fed. R. Evid. 615.

However, “this rule does not authorize excluding . . . a person whose

presence a party shows to be essential to presenting the party’s claim or

defense.” Fed. R. Evid. 615(c). While district judges are afforded broad

discretion in its application, they must remain mindful of the purpose behind

the rule. “Its main purpose is to aid in detecting testimony that is tailored to

that of other witnesses and is less than candid.” United States v. Wylie, 919

F.2d 969, 976 (5th Cir. 1990).

At the beginning of trial, Arayatanon invoked Rule 615 and requested

that one of the government’s two agents be sequestered because both agents

were identified as possible witnesses. The government responded that

because both agents had acted as the case agents at different times, each was

necessary in the presentation of its case. Based on the government’s

representation, the district court overruled Arayatanon’s objection and

permitted both agents to stay. At trial, only one of the case agents testified.

Arayatanon has made no showing to overcome the government’s

representation that both agents were essential. To the extent Arayatanon

asserts that he had the right to have one of the case agents sequestered, this

argument is unavailing. Rule 615 does not limit the district court’s discretion

to excuse only one case agent from sequestration. See United States v.

Alvarado, 647 F.2d 537, 540 (5th Cir. 1981) (“[T]he decision as to how many

will be excused from sequestration is just as discretionary with the trial judge

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as who will be excused.”); see also United States v. Payan, 992 F.2d 1387, 1394

(5th Cir. 1993) (finding no reversible error where district court permitted two

case agents to both remain and testify). In any event, Arayatanon has not

shown the resulting prejudice that is required to warrant reversal of his

conviction.

B.

Arayatanon next contends that the district court violated his due

process rights by admitting the jailhouse telephone calls. He argues that

because the calls indicated to the jury that he was incarcerated, they

undermined his presumption of innocence.

We review “a district court’s evidentiary rulings for abuse of

discretion, subject to harmless error review.” United States v. Isiwele, 635

F.3d 196, 199 (5th Cir. 2011). A district court “abuses its discretion when its

ruling is based on an erroneous view of the law or a clearly erroneous

assessment of the evidence.” United States v. Ebron, 683 F.3d 105, 133 (5th

Cir. 2012) (internal quotation marks and citation omitted).

Here, the government sought to play four telephone calls Arayatanon

had with other people while he was incarcerated prior to trial. The

government introduced these calls to show Arayatanon’s reluctance to be

referred to by his nickname “Khoi,” as he was known to his Mississippi

coconspirators and identified in Le’s phone. Three of the recordings refer to

Arayatanon as “Khoi,” despite Arayatanon’s cautions to refer to him only as

“Fred.” In one of those calls, Arayatanon also refers to his inmate number.

The fourth call does not reference “Khoi” but includes a conversation where

Arayatanon appears to admit sending packages “once or twice.” 4

4

The government emphasized all four of the jail calls in its closing statement,

including even replaying this last call. Arayatanon neither objected to this at trial nor on

appeal. Rather, he argues only that the admission of the calls was prejudicial for the sole

reason that the references to being in custody “undermined his presumption of

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During a bench conference, the government offered to authenticate

the jail calls outside the jury’s presence to prevent the jury from learning

Arayatanon was incarcerated. However, the district court declined to do so

because the “credibility of those tape recordings are a matter that the jury

will have to consider,” including how the recordings were made and that they

were not edited or tampered with. Arayatanon declined to stipulate to the

recordings’ authenticity.

The district court permitted the authentication to proceed because

“the fact that [Arayatanon] may have been in custody at the time that he

made certain phone calls” was not “a matter that should be kept a secret,”

and was not “in and of itself . . . prejudicial.” The district court emphasized

the precautions it took to ensure that Arayatanon was not presented in chains

or a prison jumpsuit, and to conceal other security measures so that the jury

would “not get the impression that any individual on trial is some type of

dangerous criminal.” Notably, too, the district court offered to provide a

cautionary instruction “about the mere fact [Arayatanon] may have been at

one time or maybe even now [is] in custody,” which Arayatanon refused.

The government subsequently elicited testimony from a correctional officer

who testified how the inmates’ calls were recorded and identified, including

Arayatanon’s calls. The calls were then played for the jury.

On appeal, Arayatanon argues that the district court’s admission of

the jail calls undermined his presumption of innocence. His sole argument is

that their implication to the jury that he was in custody was akin to as if he

“had been shackled during trial.” Not so.

“The presumption of innocence, although not articulated in the

Constitution, is a basic component of a fair trial under our system of criminal

justice.” Estelle v. Williams, 425 U.S. 501, 503 (1976). For this reason,

innocence.” Neither party addresses the government’s closing statement in their briefing

before us.

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“visible” restraints such as shackles are inherently prejudicial and are

prohibited absent a justifiable state interest such as courtroom safety. Deck

v. Missouri, 544 U.S. 622, 629 (2005); United States v. Hope, 102 F.3d 114,

117–18 (5th Cir. 1996). Similarly, the Supreme Court prohibits requiring a

defendant to appear before a jury in prison clothing because “the constant

reminder of the accused’s condition implicit in such distinctive, identifiable

attire may affect a juror’s judgment” and is “likely to be a continuing

influence throughout the trial.” Williams, 425 U.S. at 504–05.

The admission of Arayatanon’s jail calls did not pose the same

constant and visible risk of prejudice as shackling, prison garb or other

external signs of a defendant’s incarceration or perceived threat to the

community at large. 5 While Arayatanon may have been somewhat prejudiced

by the fact that the jury learned the calls were recorded while he was in jail,

we conclude that the reference to Arayatanon’s incarceration, as revealed in

the presentation of the jail calls, was not unfairly prejudicial. We do not hold

that admission of recorded jail telephone calls can never be so unfairly

prejudicial that a due process violation might result. But this is not such a

case.

The district court “may exclude relevant evidence if its probative

value is substantially outweighed by a danger of . . . unfair prejudice.” Fed.

R. Evid. 403. “A district court’s ruling regarding Rule 403 is reviewed

‘with an especially high level of deference to the district court, with reversal

called for only rarely and only when there has been a clear abuse of

discretion.’” United States v. Lewis, 796 F.3d 543, 545 (5th Cir. 2015)

(quoting United States v. Dillon, 532 F.3d 379, 387 (5th Cir. 2008)).

5

See, e.g., United States v. Nicholson, 846 F.2d 277, 278–79 (5th Cir. 1988)

(plainclothes deputies seated next to a defendant with “a history of violent and unruly

behavior” was not unduly prejudicial); Holbrook v. Flynn, 475 U.S. 560, 569–72 (1986)

(uniformed officers seated behind defendant is not inherently prejudicial to undermine a

defendant’s right to a fair trial).

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Arayatanon did not argue at trial, nor on appeal here, that these calls were

not relevant or lacked probative value. 6 The district court did not abuse its

discretion because the fact that Arayatanon had been in custody before trial

was not unfairly prejudicial under these circumstances. See also United States

v. Johnson, 624 F.3d 815, 821–22 (7th Cir. 2010) (distinguishing defendant’s

argument that the admission of jail calls was akin to a defendant wearing

prison attire at trial under Estelle v. Williams, 425 U.S. 501 (1976), and finding

no abuse of discretion in admitting the tapes under Rule 403).

Moreover, Arayatanon declined a limiting instruction to mitigate any

lingering prejudice. Even in situations where the “risk of prejudice is high,”

the Supreme Court has held that “less drastic measures, such as limiting

instructions, often will suffice to cure any risk of prejudice.” Zafiro v. United

States, 506 U.S. 534, 539 (1993); accord United States v. Williams, 620 F.3d

483, 492 (5th Cir. 2010). Consequently, the district court did not err in

admitting the jail calls.

C.

Arayatanon asserts that the district court erred at sentencing in

determining the quantity of methamphetamine attributable to him for the

purpose of calculating his base offense level under U.S.S.G. § 2D1.1(c). The

PSR held Arayatanon responsible for 882 grams (nearly 2 pounds) of

methamphetamine that were seized on November 29, 2017, plus 9 pounds of

methamphetamine based on the FedEx shipments Arayatanon sent to

Mississippi from September through November 2017. Arayatanon maintains

that the government’s evidence at trial contained conflicting evidence as to

6

At trial, Arayatanon objected to the admission of the recordings for lack of

foundation that it was “an exact copy of . . . the original.” He further objected to the

admission of the transcripts as “cumulative” and creating an “undue influence . . . on that

particular piece of proof” for the jury. The district court overruled both objections, but

gave a limiting instruction as to the purpose of the transcripts. Arayatanon does not

challenge these rulings on appeal.

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when Arayatanon sent the first package, and which packages contained

methamphetamine instead of just marijuana. Consequently, he argues that

the evidence established that he was responsible only for 9 pounds of

methamphetamine instead of 11.

We review the district court’s determination of drug quantity for clear

error and will affirm the finding as long as it is “plausible in light of the record

as a whole.” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005)

(internal quotation marks and citation omitted). In determining drug

quantities for sentencing purposes, the district court may rely on any relevant

evidence which “‘has sufficient indicia of reliability to support its probable

accuracy.’” United States v. Gomez-Alvarez, 781 F.3d 787, 796 (5th Cir. 2015)

(quoting U.S.S.G. § 6A1.3(a)). A defendant who takes issue with facts

presented in the PSR has the burden of demonstrating “that the information

is materially untrue, inaccurate or unreliable.” Id. (internal quotation marks

and citation omitted). A defendant’s mere objections at sentencing do not

constitute competent rebuttal evidence. United States v. Parker, 133 F.3d

322, 329 (5th Cir. 1998).

Here, the drug-quantity determination in the PSR is sufficiently

reliable even if based on a coconspirator’s “imprecise” testimony, especially

absent any competent rebuttal evidence from Arayatanon to refute the 11

pounds of methamphetamine attributed to him in the PSR. See United States

v. Alford, 142 F.3d 825, 832 (5th Cir. 1998). Moreover, contrary to

Arayatanon’s bare assertions on appeal, both the PSR and evidence

presented at trial support this drug-quantity determination. In light of the

record as a whole, the district court’s factual finding as to the quantity of

methamphetamine was more than plausible. See id.; Betancourt, 422 F.3d at

246. Thus, the district court did not err in relying on the PSR, as

corroborated by the court’s recollection of the evidence presented at trial,

and adopting the PSR’s drug-quantity determination.

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D.

Arayatanon next challenges the application of the two-level

enhancement under U.S.S.G. § 2D1.1(b)(5), contending that the evidence

was insufficient to establish that the methamphetamine was imported. We

review the district court’s factual determination that § 2D1.1(b)(5) applies

for clear error. United States v. Serfass, 684 F.3d 548, 553–54 (5th Cir. 2012).

Section 2D1.1(b)(5) provides for a two-level enhancement if the

offense involved the importation of methamphetamine. U.S.S.G.

§ 2D1.1(b)(5). “The government must prove the facts underlying a

sentencing enhancement by a preponderance of the evidence.” Serfass, 684

F.3d at 553. The enhancement “applies when ‘the offense involved the

importation of . . . methamphetamine,’ even if the defendant did not know

that the methamphetamine was imported.” Id. at 554 (alteration in original)

(quoting U.S.S.G. § 2D1.1(b)(5)).

In support of this enhancement, the PSR stated that the

methamphetamine seized on November 29, 2017, was 100% pure. DEA

agents advised the probation officer that the methamphetamine “was likely

imported into the United States” because “there are no known labs in the

United States that can manufacture methamphetamine of this purity level.”

At sentencing, the district court also noted that “[Arayatanon] or individuals

that were associated with [him] [made] trips to Mexico.”

On appeal, Arayatanon argues that the district court erred because

“the PSR lacks any discussion of importation aside from [his] travel to

Mexico and the purity level.” However, on this record, the district court

could plausibly infer, by a preponderance of evidence, that the

methamphetamine was imported. See Serfass, 684 F.3d at 550, 553.

Arayatanon’s principal argument on appeal that “[a] Mexican cartel could

have manufactured the methamphetamine within the United States . . . with

no importation required” is speculation that does not rebut the PSR. See,

e.g., United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010) (“Because

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no testimony or other evidence was submitted to rebut the information in the

PSR, the district court was free to adopt the PSR’s findings.”). Thus, the

district court did not clearly err in applying the § 2D1.1(b)(5) enhancement.

E.

Finally, Arayatanon contends that the district court erred in

sentencing him as a career offender under U.S.S.G. § 4B1.1. Specifically, he

argues that the district court erred in determining that there was reliable

evidence to establish the existence of the requisite prior convictions.

We review the district court’s application of the Sentencing

Guidelines de novo and review its factual findings for clear error. Gomez-

Alvarez, 781 F.3d at 791. Clear error review applies where, as here, the

defendant challenges “a district court’s conclusion that evidence submitted

to prove the fact of a prior conviction bears ‘sufficient indicia of reliability.’”

United States v. Ortega-Calderon, 814 F.3d 757, 759 (5th Cir. 2016) (quoting

U.S.S.G. § 6A1.3(a)); id. at 760 (distinguishing between the “legal inquiry”

of whether a specific type of conviction qualifies for purposes of applying a

sentencing enhancement and “the factual question of whether a defendant

has been convicted—period”). “There is no clear error if the sentencing

court’s finding is plausible in light of the record as a whole.” United States v.

Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). This court will reverse

on clear error review only if it is left with a “definite and firm conviction that

a mistake has been committed” based on the entire evidence. United States

v. Rose, 449 F.3d 627, 633 (5th Cir. 2006) (internal quotation marks and

citation omitted).

The career offender enhancement applies if, inter alia, “the defendant

has at least two prior felony convictions of . . . a controlled substance

offense.” U.S.S.G. § 4B1.1(a). The PSR determined that Arayatanon

qualified as a career offender under § 4B1.1 based on two prior controlled

substance convictions in California, first in 2009 and then again in 2013, both

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for possession of a controlled substance (methamphetamine) with intent to

sell, in violation of California Health & Safety Code § 11378. 7

The PSR was initially prepared based on the criminal complaints

received from the Clerk of Court in California and conviction information

obtained from the Clerk’s official website. At Arayatanon’s request,

sentencing was continued to permit defense counsel additional time to

investigate additional documentation—including judgments—to rebut the

PSR.

The probation office subsequently supplemented the PSR. While no

judgment or additional documents directly from the 2009 conviction were

produced, the additional documents from the 2013 conviction repeatedly

referenced the 2009 conviction, including an amended charging document, a

signed admission from Arayatanon that he had been convicted in 2009 of

possession of a controlled substance with intent to sell, and a signed guilty

plea stating both that Arayatanon was pleading guilty in 2013 to possession of

a controlled substance with intent to sell and that he had been previously

convicted in 2009 of the same charge. An abstract of judgment for

Arayatanon’s 2013 conviction was also included. At sentencing for the

instant offense, Arayatanon presented no additional evidence, and the

district court adopted the PSR’s conclusions as to the prior convictions and

applied the career offender enhancement.

The district court did not clearly err in concluding that the prior

California convictions occurred. To start, Arayatanon’s argument that the

2013 abstract of judgment is unreliable based on United States v. Gutierrez-

Ramirez, 405 F.3d 352 (5th Cir. 2005) is misplaced. That case determined

that it was error to exclusively rely on a California abstract of judgment to

7

It is undisputed that a conviction under this statute qualifies as a predicate

controlled substance offense. See United States v. Olson, 849 F.3d 230, 232 (5th Cir. 2017)

(per curiam).

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determine whether the defendant’s prior conviction qualified as a drug

trafficking offense, not whether it was sufficiently reliable to establish that a

conviction occurred. See Gutierrez-Ramirez, 405 F.3d at 358–59; see also

United States v. Moreno-Florean, 542 F.3d 445, 449 n.1 (5th Cir. 2008)

(“California abstracts of judgment have sufficient indicia of reliability to

support their probable accuracy such that the documents can be used as

evidence of a prior conviction.”). 8

Moreover, contrary to Arayatanon’s assertion that the documents

contain “inconsistencies” as to how Arayatanon was sentenced, they are

internally consistent regarding the fact of the 2009 and 2013 convictions.

While the documents are not judgments, they contain “a significant amount

of detail” and “strongly corroborate one another,” including referencing the

dates, case numbers, and charges for the prior 2009 and 2013 convictions.

Ortega-Calderon, 814 F.3d at 762. Nor has Arayatanon offered evidence to

rebut the reliability of the documents and his signed admissions, or denied

that he was convicted. See id. (“We have previously refused to find evidence

of a prior conviction to be unreliable when the defendant has not come

forward with contrary proof, and we do so again here.”). Consequently, the

district court did not commit clear error in relying on these documents to

8

Gutierrez-Ramirez and Moreno-Florean involved sentencing enhancements under

U.S.S.G. § 2L1.2, which increases the offense level for a conviction of unlawful reentry if

the defendant was previously convicted of a “drug trafficking offense” or “crime of

violence.” Gutierrez-Ramirez, 405 F.3d at 353–54; Moreno-Florean, 542 F.3d at 449.

Because the qualifying prior convictions in § 2L1.2 and § 4B1.2(b) are defined in

substantially the same way, “cases discussing these definitions are cited interchangeably.”

United States v. Pillado-Chaparro, 543 F.3d 202, 205 (5th Cir. 2008) (per curiam); accord

United States v. Mendez-Henriquez, 847 F.3d 214, 221 (5th Cir. 2017) (“[O]ur court’s

interpretation of § 4B1.2 informs our interpretation of § 2L1.2, given the two Guidelines’

identical language and closely aligned purposes.”). The same applies here in considering

whether the documents used to establish proof of a prior conviction contain “sufficient

indicia of reliability to support its accuracy” to apply a sentencing enhancement. U.S.S.G.

§ 6A1.3(a).

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determine Arayatanon was a career offender under § 4B1.1. See Ortega-

Calderon, 814 F.3d at 762–63.

III.

For the forgoing reasons, we AFFIRM Arayatanon’s conviction and

sentence.

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